


That is legally problematic

by Aragorn_II_Elessar



Category: Captain America (Movies), Daredevil (TV), Marvel Cinematic Universe, The Avengers (Marvel Movies)
Genre: Anti-Sokovia Accords, Avengers didn't split, BAMF Matt Murdock, But no bashing on Team Iron Man, Captain America: Civil War (Movie), Civil War Team Captain America, Civil solution, Constitutional rights, Flames will be deleted, Gen, Not Accords friendly, Ross is a jackass, Sokovia Accords are a crime against humanity, Team as Family, Tony Stark is not OOC
Language: English
Status: Completed
Published: 2020-03-08
Updated: 2020-03-08
Packaged: 2021-03-01 02:00:33
Rating: General Audiences
Warnings: Creator Chose Not To Use Archive Warnings
Chapters: 1
Words: 3,241
Publisher: archiveofourown.org
Story URL: https://archiveofourown.org/works/23067382
Author URL: https://archiveofourown.org/users/Aragorn_II_Elessar/pseuds/Aragorn_II_Elessar
Summary: The Avengers bring in a certain 'blind' lawyer to point out to Ross why the Accords are not a solution but another problem. Anti-Sokovia Accords.
Comments: 38
Kudos: 217





	That is legally problematic

**Author's Note:**

> Disclaimer: I do not own Marvel Cinematic Universe or anything else you may recognize
> 
> Just an idea I got from Legal Eagle's video on Sokovia Accords.

Secretary Ross walked into the Avengers Compound, wondering why they had called him up one day after he had presented the Sokovia Accords to them. Did they want to kill him secretly or something?

No, that would just be a stupid move.

Maybe they wanted to personally tell him that they were signing. Oh he couldn't wait to see their faces when they would tell him they had decided to sign.

They would all be under his control from now on, which was exactly what he wanted. He would slowly seize Stark's suits and property, experiment on Steve and Wanda to figure out how to make the perfect super soldier who also had Wanda's powers, and put Vision under his control somehow.

When he walked in, he saw Steve, Tony, Natasha, Wanda, Sam, Rhodes and Vision sitting around their table in the same position from the previous day. But with them was a man in a suit wearing glasses and holding a cane. Obviously, he was blind. Or at least he looked blind.

"Pardon me but why am I called here?" Ross asked.

"Mr. Secretary, honored to meet you", the blind man said as he held out his hand, though Natasha could tell he wasn't sounding honored, just disgusted. "I am Matthew Murdock."

Ross shook his hand and asked. "So who are you? I believe I have seen you before."

"I am a lawyer", Matt said and Ross' eyes lit up.

"You defended the Punisher", Ross remembered and asked. "So what? Now you're suddenly anti-vigilante or something? Why are you here?"

"Mr. Secretary, I would like to tell you that all of this is being recorded", Tony said and he nodded.

"So, almost one year ago, Novi Grad was destroyed in a battle between the Avengers and Ultron", Matt said as he paced around while Ross listened, wondering what Matt was getting at. "So the UN decided to regulate enhanced individuals."

Turning to face Ross, Matt said. "That is legally problematic."

"What?" Ross asked in shock. "What are you talking about?"

"Let us pretend these Accords are a legal, binding document", Matt said to Ross as he stopped. "I am going to analyze them in far, far too much detail."

Matt then said. "In the wake of the Ultron disaster, countries throughout the UN decided to sign the Sokovia Accords which are a phone-book sized set of regulations aimed at the Avengers squarely and enhanced individuals and organizations working for you all."

Raising his hands, he said. "It seeks to limit the so-called Enhanced individuals, including registration components, monitoring components and imprisonment components. Most importantly, provisions apply only to the signatories of the Sokovia Accords while other provisions apply to all Enhanced individuals as a whole whether they have signed or not. This is quite the constitutional problem."

"What are you talking ab-"

"Let Mr. Murdock speak, Mr. Secretary", Vision said and he sighed before shutting up.

"These Accords raise quite some Constitutional problems", Matt said. "First, I am going to bring up if they are even legal. And second, what would be the legal framework in their absence?"

Raising a finger, Matt said. "Let's first talk about the Accords as a whole. An accord, is not a US law. It's an international treaty which several countries will sign. But just because many countries will potentially sign an agreement wouldn't actually make it law in the US. In case of a treaty, the Senate has to approve the treaty by a 2/3 vote under Article II, Section 2 of the Constitution. And there are tons of treaties the US has signed but never ratified, including the International Criminal Court Treaty, the Comprehensive Nuclear Test Ban Treaty, the Kyoto Protocol and the Treaty of Versailles. Basically the US is still in World War I."

At this point, Ross had no comebacks as Matt continued. "But for the sake of argument, let's assume the US Senate has in fact ratified the Sokovia Accords by day after tomorrow. But even when treaties are ratified, they cannot violate US Constitution, and this was an issue when US adopted NATO, because it was thought that the Mutual Defense Treaty would violate Congress' right to declare war. Now before I examine the Accords themselves, I will analyze the status quo ex ante of the US Criminal and tort law."

Pointing at Steve, Matt said. "Captain Rogers here chafes at the restrictions of the Sokovia Accords, but it's not like in their absence he would be allowed to operate domestically in the US. Vigilantes are illegal."

Matt tried to hide his own smirk at that as it was ironic he was saying it.

"You can't go around getting into fights, even for a good cause", Matt explained. "The justification of self-defense generally doesn't apply when you intentionally put yourself in harm's way. And all of the enhanced individuals, including the ones in this room, are using deadly force, which almost always carries with it a duty to retreat if you are able to do so. Of course the US law doesn't necessarily apply to the Avengers' actions in Sokovia and other foreign countries. But they are also operating where US law does apply. And we won't even talk about federalism. If enhanced individuals were allowed to operate at a federal level under the Accords, there are still State laws to prohibit their actions. And there is no way federal law would preempt garden variety state laws about criminal conduct. Now you can argue Avengers and SHIELD are operating as arms of the government, essentially like mercenaries, which can give them legal cover under the Battle of New York. But if that's so, they're operating as an arm of the US government, which carries with it all kinds of constitutional protections and doesn't get them out of trouble. But let us ignore all these issues and talk about the problems with the US version of these Accords."

Shaking his hands Matt said. "Let's start with the compelled speech portion of these Accords. The Sokovia Accords state, and I quote- "Any Enhanced Individual who agrees to sign must register with the United Nations and provide biometric data such as fingerprints and DNA samples. Those with secret identities must reveal their legal names and true identities to the United Nations.""

Matt sighed, wondering what would happen if this happened to him before saying. "This is a classic case of compelled speech, some of which applies to signatories and some of which does not apply to signatories. But forcing individuals to give up their secret identities is the government compelling you to make a certain kind of speech. And if the first amendment has a problem with the government restricting certain speech, you can imagine that it is doubly problematic if it forces individuals to make a certain kind of speech. For example, in the Supreme Court case of West Virginia School Board vs. Barnette, the Supreme Court said that a school could not force students to stand and salute the flag. Now I do believe you should salute it, but that was still compelled speech. And in the same way, you can't force individuals to give up their secret identities and provide biometric data and fingerprints to the government."

"It's all written here, Ross", Tony said, pointing at the Accords when he saw Ross opened his mouth to try to respond. "So don't try to deny it."

Raising two fingers, Matt said. "Number two- forced registration sounds a lot like internment. The Sokovia Accords require all enhanced individuals to at least register with the government whether they are using their powers or not, which sounds a lot like internment of the Japanese in World War II under executive order 9066 by President Roosevelt. It was tested in a court case Korematsu and the Supreme Court did not overrule the executive order that interned the Japanese. Korematsu is still good law. Though I doubt the Supreme Court would rule the same way today, despite the fact the ruling has never been overturned. But in any case, this is a clear violation of fourth and fifth amendment protections and requirement for due process."

With a sigh, Matt started. "Number three, monitoring of enhanced individuals. This seems like a clear fourth amendment problem. The Sokovia Accords state and I quote- "Those with innate powers must also wear tracking bracelets at all times." The problem is warrantless tracking without probable cause just because someone is an enhanced individual would be a clear fourth amendment violation, a violation of right to privacy, being enhanced doesn't necessarily mean you have probable cause to monitor them. And it would be crazy to have a blanket monitoring system that would monitor everyone in the US without probable cause. So its very good that the US government has never had a program like that, to monitor people without probable cause. The Sokovia Accords also state that "Those with innate powers must submit to a power analysis, which will categorize their threat level and determine potential health risks." This feels like a huge violation of the right to privacy. The government just can't go around doing medical examinations of individuals just because it feels like its in the public interest. People have individual rights to specifically protect them from this kind of invasive testing. And additionally, it would probably be a violation of Mr. Stark's intellectual property."

Pointing at Stark he said. "Even if he hasn't patented the Iron Man suit, which he would have, it would probably be a trade secret, and the compelled power analysis would probably violate his IP rights to the suit that he created."

"You're hired", Tony said.

"Tony", Natasha said in annoyance and he shut up.

"Number four, second amendment's individual right to bear arms", Matt explained. "While this is still a huge point of controversy, in recent Supreme Court precedent, in the District of Columbia vs. Heller, the Supreme Court confirmed that the second amendment does provide an individual the right to bear arms. So, what is the threshold for Iron Man, Falcon and War Machine to be able to use their inventions that they created effectively, the Iron Man suits or Falcon machinery are arms they have created, and certainly, in some circumstances, you are allowed to an individual right to bear arms. Now obviously, individuals are not allowed to have military hardware but the Sokovia Accords don't actually make clear where the individual right to bear arms starts and where the exclusion of military technology kicks in and how that would apply to the individuals who are not innately enhanced but have created an enhanced suit for themselves. So given the makeup of the Supreme Court and deference shown to individual right to bear arms under second amendment, you can bet that Sokovia Accords run afoul of that right under the Constitution as well."

Ross was speechless at this point as Matt continued. "Number five, a violation of the freedom to associate. The Accords apply to all the Avengers even those who are not enhanced, effectively preventing them from being a member of this community or group. Now the first amendment is most famous for the individual right to freedom of speech but the lesser known right of the first amendment is the right to voluntarily associate. And the Sokovia Accords prevent individuals from association with the private organization called the Avengers and the private organization called SHIELD. Just because you're an enhanced individual doesn't mean you lack first amendment rights to be part of a group you want to participate in."

Natasha, Sam and Rhodes smirked at that as well as Ross' expression as Matt said. "Number six, violation of the freedom to travel. The Sokovia Accords state and I quote- "Any enhanced individuals who sign are prohibited from taking action in any country other than their own, unless they are first given clearance by either that country's government or by a United Nations subcommittee." Now the defined term 'taking action' can be read very broadly. Would that prevent the Avengers from setting foot in any particular country without getting the UN subcommittee to allow them to travel? And would it prevent them from traveling domestically in the US? If it does, then its clearly a violation of the privileges and immunities cause of the US Constitution. And not to mention, violation of various international laws that allow freedom to travel, particularly between US and EU. I think that this is a poorly drafted statement and it shows how important it is to define the terms you're dealing with, otherwise people would read them broadly when they're written broadly, and it can have unintended consequences."

Ross wiped sweat off his brow as Matt said. "Which takes me to problem number seven, which is vagueness. There is a constitutional rule that allows criminal law to state explicitly and definitively, what conduct is punishable. Criminal laws violating this are said to be void on vagueness grounds. Vagueness doctrine is based on due process clauses of fifth and 14th Amendments to Constitution. And I think there's a big problem here in what enhanced individuals are being accused of. Vague terms like taking action, vague terms as in what constitutes an enhanced individual itself, all of these are vagueness issues that are probably so vague as to run afoul of the due process clauses in the Constitution. That takes me to issue number eight."

At this point, Ross pretty much stumbled onto a chair as Matt said. "Imprisonment. The Accords effectively treat enhanced individuals who fail to comply with them as enemy combatants. Now its one thing to send enemy combatants that are imprisoned in a foreign theater of war and send them to Guantanamo, but its another thing entirely to send US citizens who were found in US, to the equivalent of Guantanamo on some Helicarrier someway. This is a clear due process violation. You can't just put people inside a Helicarrier with no lawyer, no arraignment and no bail. That's clearly a sixth amendment violation to the right to council."

Ross gulped, which everyone noted. The Raft which he had designed was going to do just that. Did they know about it? Would they send the evidence to the President himself?

"And the other side of that is problem number nine which is forced conscription into combat", Matt said. "The Accords appear to force certain enhanced individuals into fighting for the US government in certain times of war, effectively the draft, but its another thing entirely to seek out certain individuals specifically and force them into combat on behalf of the government. This seems like a clear violation of the 13th amendment's prohibition against involuntary servitude. You might recall that we fought a civil war to prevent involuntary servitude and slavery, and forcing enhanced individuals to fight seems to run afoul of all those prohibitions. Which takes me to problem number ten and the biggest constitutional violation."

At this point, Ross couldn't even think of forming a response as Matt said. "The violation against habeas corpus. Habeas corpus is Latin for 'produce the body' and the Sokovia Accords state and I quote- "Any individuals who use their powers to break the law, including those who take part in extra legal vigilante activities or are otherwise deemed to be a threat to the safety of the general public may be detained indefinitely without trial. If an enhanced individual violates the Accords or obstructs the action of those enforcing the Accords, **they may likewise be arrested and detained indefinitely without trial**."

Wanda looked uncomfortable, wondering if this had been specifically drafted for her, as Matt said. "You might see where this is going, but simply detaining people indefinitely without trial is the classic constitutional problem. And in fact, just simply deeming someone a threat before they have committed any kind of events on purpose is like a precrime prohibition which again runs afoul of the Constitution. The writ of habeas corpus requires a person in custody to be brought before a court, provided a lawyer if they can't afford one, and to be protected by the US Constitution. We fought the War of Independence to have protections of Constitution to prevent things like indefinite imprisonment for no reason whatsoever. This violates the fourth Amendment which protects people from arbitrary arrest. It violates fifth amendment's protection against being deprived of life, liberty, and property without due process. And it violates the sixth amendment's right to council and a trial. There's actually a very few parts of the Constitution that this part of the Sokovia Accords don't actually violate."

Matt then turned to the Avengers, signaling he was done at last.

Steve then got up and said. "So as you can see Mr. Secretary, the Accords violate a lot of things written in the Constitution, so I do not feel it is in our best interests to sign it."

Ross started. "We will get it ch-"

"Oh you will. Because we will send this recording to the President as well as the UN within this hour to make sure they look at the problems", Tony said and he gulped. "And until this is all fixed, we are all together in not signing it."

"You can show yourself the way out, Mr. Secretary", Natasha said, giving him a cold look which sent shivers down his spine.

Getting up, he adjusted his suit and walked out without a word to anyone, as it would get him in a lot of trouble.

Tony then shut off the recorder and said. "Now that was such a good way to handle this situation, instead of some of us signing and others not and then fighting."

"I know", Rhodes said. "Can't believe my reasoning for supporting them yesterday."

"Thanks a lot, Matt", Natasha said as she got up and gave him a kiss on the cheek, making him smile. "We couldn't have done this without you."

"Oh it's no problem", Matt assured. "After all, I stand for all of us."

"A man who is a lawyer and dresses up as a Devil to fight crime, I can't believe it", Steve said as all chuckled.

"I believe Ross' crimes, which we found about, will also be sent", Vision said.

"You bet your ass they will", Sam said.

"Mr. Murdock, if you would ever like our help with anything, do not hesitate to call", Steve assured him.

"I will keep that in mind, Captain Rogers", Matt said as they shook hands as he also shook hands with Tony.

Wanda gave him a grateful smile which he returned with a nod before hugging Natasha as they kissed each other's cheeks.

And then he walked out as the others exchanged looks.

Within the hour, footage of Matt ripping into the Accords reached the President as well as the UN. The former also got a compilation of Ross' crimes which had been dug into by Fury and the Avengers, along with his illegal prison called the Raft.

Needless to say Ross was imprisoned for his crimes the very next day and the Sokovia Accords were fixed over the next three months with input from the Avengers and several other enhanced before finally seeing the light of the day.

And this time, they were actually an agreement, not a dictatorial order that had been passed down.

And no heroes fought each other. All thanks to one Matt Murdock.

**Author's Note:**

> And done.
> 
> Thank you to Legal Eagle for their video on the Sokovia Accords, from which I pulled everything. I thought Matt saying all of it to Ross would be awesome.
> 
> I did this because I am seeing stupid prop-Tony stuff…..again! One story even has the Asgardians supporting the Accords! What the actual FUCK? The idiot who wrote that story needs to get his brain checked up, as there are several other problems with him I noticed based on his reviews on other stories and a response he once sent me.
> 
> And Tony stans are even hating on Scott for being Team Cap. How can anyone hate Scott? He is unhateable! Let me repeat- UNHATEABLE!
> 
> The Accords are a fascist document that could have easily come out of North Korea or Nazi Germany and Tony, Natasha and Rhodes were all written OOC to support them. That is the truth! Or as Matt would say, God's truth.
> 
> Hope everyone enjoyed and see you all next time with another update.


End file.
